Restoring constitutional supremacy

The Federal Constitution’s core values are not words in the sand to be washed away by political tides.

I AGREE with Datuk Seri Gopal Sri Ram,our distinguished, retired deral Court judge, that the recent deral Court decision on the Indira ndhi case is "probably the most portant judgment° in independ-nt Malaysia's constitutional histo-ry. I believe that the courageous and learned opinions of Tan Sri Zainun 13 i and Tan Sri Zulkefli Ahmad kinuddin do much to restore our deral Constitution to the pedestal n which it was placed when alaya began its tryst with destiny, but from which it had slipped in the decades. Basic structure: Among other things, this great verdict consoli-dates the view that the amendment 'process cannot be abused to dis-mantle the "basic structure° of the ',Constitution which, according to the Federal Court, includes separa-tion of powers, rule of law and 1 protection of mino power of the superior civil courts to review the the exercise of statutory functions by the Registrar of Con-verts under Perak state legislation. It was held by the apex court that the power ofjudicial review and of constitutional or statutory interpre-tation are pivotal constituents of the dvil courts' judicial function under Article 121(1). The 1988 amendment to Article 121(1A) relating to Syariah courts does not constitute a blanket exclu-sion of the jurisdiction of civil courts in Islamic law matters if unconstitu-tionality or illegality is present. Pros and cons: The doctrine of "unamendablity of the basic struc-ture" has beckoned lawyers and judges in many legal systems. There are riveting debates about its pros and cons. Prominent arguments against the doctrine are that it invents implicit limits on Parliament's amendatory powers, even though such limits are nowhere explicitly provided for. It is a blatant piece of judicial legislation. It drags judges int the Constitution against the power of transient transient political majorities. Suppose a future parliament, by following the required two-thirds majority, abolishes elections and gives to each MP a tenure for life. Is there any safeguard against such abuse of amending power? The argument that the basic struc-ture is not identifiable is not con-vincing. In Loh Katt Choon (1977), Federal Court judge Raja AzJan Shah (later, the Suhan of Perak) identified three concepts as basic to Malaysia — fundamental rights, federal divi-sion of powers and separation amongst the executive, legislature and judiciary. The recent cases of Semenyih Jaya (2017) and Indira Gandhi (2018) have identified other pivotal provisions. History The basic structure doc-nine is believed to have originated in Germany in the writings of Prof Dietrich Conrad. It was affirmed strongly in India in the cases of Keshavaitan Bharati v Kerala (1973), Indira Nehru Gandhi v Raj Narain (1975), Minerva Mills v Union of htdia (1980) and Raja Ram Pal (2007). Bangladesh has adopted the doctrine, as have Turkey Czechoslo-vakia, Norway and the United States. However, the doctrine has been rejected in Singapore in the cases of Teo Soh Lung (1989) and Vincent Oteng (1990). Our judges had to grapple with it in the case of Government of The plaintiff argued that in cowering Malaya into Malaysia, the consent of Kelantan should have been obtained, even though no explicit provision of the Constitution so required. Thomson, C.J. rejected the plain-tiffs contention but observed that if Parliament does something "funda-mentally revolutionary", that may require 'fulfilment of a condition which the Constitution itself does not prescribe". Herein were seeds of the idea that Parliament can amend the Constitution but cannot destroy its basic structure. Subsequently in Loh Kooi Choon v Government (1977), an amend-ment to Article S(4) diminishing an arrestee's right to production before a magistrate was challenged as an affront to the basic structure of the Constitution. In Phan& Chin Hock v PP (1980), amendments were challenged because they increased the number of appointed senators so drastically as to reduce the indirectly elected "state eenators" to a minority. In Mark Koding v PP (1982), an amendment to Article 63 was chal-lenged as a violation of the basic structure because, in a departure from all other democratic legisla-tures, freedom of speech in Parliament was subjected to the law of sedition. All the challenges failed. The courts held that the amend- It with the bask structure. The court also doubted the relevance of basic structure argument to Malay sia. But in Panda It Return AbdulInk Sultan HajiAlunad(1996), one oft judges held that even if Parliamen by constitutional amendment we to confer the right on a Singapo ckizen to sue the Malay Rulers, s conferment was illegal unde Article 1SS unless a similar righ was given to Malaysians in Slings pore. There were echoes of the bast structure doctrine here. These edt oes became louder in Sivar Rasiah (2010), Senenyth Jaya (201 and now Indira Gandhi Muth (2018). In the last two cases, the Federa Court held that the vesting of Judi cial power of the Federation in civil courts formed part of the basi structure of the Constitution a could not be removed, even by con stitutional amendment. We will have to wait and whether this admirable constitu tional development will survive test of time. As in life, nothing settled in the law. Emeritus Professor Datuk Dr Shad Saleem Faruqi is Tunku Abdul Rahman Professor of Law at Universiti Malaya. The views expressed here are entirely the writer’s own.